The trial court correctly entered summary judgment for defendant town in an action
seeking a declaration that the denial of plaintiffs' rezoning application was contrary to law.
Although plaintiffs contend that the town council's decision was arbitrary and capricious, the
transcript reveals that the council denied the request because it was concerned that the traffic
increase, though minimal, would exacerbate existing congestion and because it would be
inappropriate to approve the request on the same day that it approved $10-20 million to
investigate relief of traffic problems in the area.
Morgan, Reeves & Gilchrist, by C. Winston Gilchrist, for
plaintiff-Appellants.
The Brough Law Firm, by G. Nicholas Herman, for defendant-
appellee.
WYNN, Judge.
By this appeal, Carlton S. Ashby and his wife, Cora B. Ashby,
d/b/a Ashby Furniture Galleries (“the Ashbys”), challenge the trial
court's summary judgment upholding the Town of Cary's denial of
their rezoning application. After careful review, we affirm.
The underlying facts show that in 2000, the Ashbys owned a lot
of approximately one acre on Walnut Street outside of the Town of
Cary's jurisdiction. The Ashbys wanted to build a new furniture
store on this lot but needed additional land. Adjacent to the lot,
the Town of Cary owned a lot consisting of less than one acre. TheTown of Cary and the Ashbys negotiated a deal in which the Ashbys
acquired the Town of Cary's lot and in exchange the Town of Cary
obtained frontage from the Ashby lot necessary for the widening of
Walnut Street.
In December 2000, pursuant to an annexation petition filed by
the Ashbys, the Town of Cary annexed the Ashby property. The
Ashbys contend that throughout the land exchange negotiations and
the annexation process, the Town of Cary knew they intended to use
their land for the construction of a furniture store. However, the
Town of Cary contends the town council only knew the Ashbys were
interested in developing the property in some unspecified way.
The two tracts of land total 1.99 acres located in an area
commonly referred to as the “Walnut Street Corridor.” The area
consists of two major retail malls, a variety of commercial and
retail developments, a movie theater, two auto dealerships, several
office complexes and a 776-unit multi-family residential complex.
Contiguous to the Ashby property is the Centrum Shopping Center,
which consists of more than 750,000 square feet of retail and
restaurant space.
Notwithstanding the abundance of commercial and retail
establishments in this area, the Ashby tracts were zoned R-30
(Residential 30), for low-density residential purposes. Thus, in
September 2001, the Ashbys filed an application with the Town of
Cary to rezone the property from R-30 to B-2 (Business-2
Commercial) Conditional Use district classification and also
submitted an application for a conditional use permit. In their
applications, the Ashbys proposed several conditions on the use oftheir property such as the property would be used only for a
furniture store; the store would be no larger than 19,000 square
feet; the traffic generated would not exceed 100 peak hour trips
and 1000 average daily trips; and no certificate of occupancy for
the store would be issued before the completion of the Town of
Cary's project to widen and realign Walnut Street. The Ashbys
included with their application a letter from an engineering firm,
which stated that during a typical weekday the store would generate
51 additional car trips per day on Walnut Street. However, the
letter did not address the amount of additional traffic the store
would generate on weekends.
During the same time period in which the Ashbys submitted
their applications, the Town of Cary began reconsidering the
Southeast Gateway Area Plan, which was adopted in 1998 by the town
council to address land use and transportation issues in the Walnut
Street Corridor and the area surrounding the Crossroads Plaza
Shopping Center. It was adopted as a reference guide to direct
growth when rezoning, annexation, subdivision, and site plans are
considered and had a goal of alleviating and mitigating existing
and future traffic movement within the area. Under this plan, the
proposed conditional use of the Ashbys property would meet the
criteria of commercial low intensity land use, which was one of the
three uses recommended for the area in which the Ashbys property is
located. However, in April 2001, the town council approved funding
for a new land use study to be called the “Walnut Street Land
Use/Transportation Plan.” Thus, at the time the Ashbys submitted
their applications in September 2001, the Town of Cary was in theprocess of reviewing land uses in the Walnut Street corridor.
After following the requisite procedures for considering
rezoning applications, the Ashbys' applications were placed on the
town council's agenda for a final decision on 10 January 2002. On
this same date, the town council had a work session to discuss the
status and preliminary recommendations of the new “Revised Walnut
Street Land Use/Transportation Plan.” During the work session, the
council members discussed traffic congestion on weekends and during
peak hours and had extensive discussions about the differences
between the Southeast Gateway Plan and the proposals set forth in
the new plan. In particular, the town council discussed whether
the Walnut Street area should be permitted to accommodate
additional retail and commercial uses or should be zoned for more
office and institutional uses that would reduce traffic congestion.
That evening, the town council voted, 5-2, to deny the Ashbys
application. The town council expressed a concern that even with
the widening and realignment of Walnut Street, the weekend traffic
congestion in the area could not accommodate additional retail or
commercial uses. Thereafter, the town council voted to waive the
restriction that prohibits a landowner from submitting a new
application within 12 months after a denial. Thus, the Ashbys were
permitted to submit a new application at any time.
Notwithstanding the town council's concerns about traffic
congestion, on the same evening the town council considered and
approved a rezoning application by Crossroads Ford, an automobile
dealership, which rezoned 14.11 acres from Office and Institutional
to B-2 Conditional Use for a parking lot storage facility forinventory.
After denial of their rezoning request, the Ashbys filed a
declaratory judgment action seeking a declaration that the Town of
Cary's denial of their rezoning application was null and void and
contrary to law. After summary judgment was entered in favor of
the Town of Cary, the Ashbys appealed.
On appeal, the Ashbys contend the trial court erroneously
entered summary judgment in the Town of Cary's favor because
genuine issues of material fact exist as to whether the council's
decision was arbitrary and capricious. We disagree.
“Summary judgment is appropriate only if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to
judgment as a matter of law.” Martin Architectural Products v.
Meridian Construction, 155 N.C. App. 176, 180, 574 S.E.2d 189, 191
(2002). “An issue is material if the facts alleged would
constitute a legal defense, or would affect the result of the
action, or if its resolution would prevent the party against whom
it is resolved from prevailing in the action.” Koontz v. Winston-
Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). “An issue
is genuine if it can be proven by substantial evidence.” Lowe v.
Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). “The
movant has the burden of showing that summary judgment is
appropriate. Furthermore, in considering summary judgment motions,
we review the record in the light most favorable to the nonmovant.”
Hayes v. Turner, 98 N.C. App. 451, 456, 391 S.E.2d 513, 516 (1990). The Ashbys contend the town council's decision was arbitrary
and capricious because (1) the Town of Cary entered into the land-
exchange transaction with knowledge that the Ashbys wished to
acquire the property for the sole purpose of a furniture store, (2)
the furniture store would generate low traffic, (3) the rezoning
request complied with the Southeast Gateway Plan, the zoning plan
in effect at the time of the request, (4) the Planning Board
recommended the proposed rezoning by a unanimous vote, and (5) the
town council approved Crossroads Ford's rezoning request. It is
well established that the grant or denial of a rezoning request is
purely a legislative decision which will be deemed arbitrary and
capricious if “the record demonstrates that it had no foundation in
reason and bears no substantial relation to the public health, the
public morals, the public safety or the public welfare in its
proper sense.” Graham v. Raleigh, 55 N.C. App. 107, 110, 284
S.E.2d 742, 744 (1981). A reviewing court is “not free to
substitute [its] opinion for that of the legislative body so long
as there is some plausible basis for the conclusion reached by that
body.” Id.
As an initial matter, we note that the Ashbys sought the
introduction of evidence in the trial court that was not presented
to the town council. Specifically, the Ashbys offered affidavits
from a zoning expert and a traffic engineer. However, as indicated
in Graham v. Raleigh, this Court considers the record before the
legislative body in assessing the validity of a zoning action. See
id. (stating “a zoning ordinance will be declared invalid only
where the record demonstrates that it has no foundation in reasonand bears no substantial relation to the public health, the public
morals, the public safety or the public welfare in its proper
sense”). As stated, in reviewing rezoning decisions, this Court is
not free to substitute our opinion for that of the legislative body
so long as there is some plausible basis for the conclusions
reached by that body. See id.
During the 10 January 2002 meeting, the town council members
expressed some concern about the traffic increase that would be
generated by the furniture store. Even though the traffic increase
would be minimal, a majority of the council members felt that even
a minimal increase in traffic would exacerbate the traffic
congestion in the Walnut Street corridor. Moreover, council
members felt it was inappropriate to approve the rezoning request
on the same day that the council approved a $10-20 million dollar
expenditure to investigate how to alleviate the traffic problems in
that area. As one council member stated: “I cannot, in good
conscious, tell a resident when they ask me, 'What are you doing to
fix the area?' “Well, we're going to spend $10 to 20 million, but
we're going to add a little more retail too.'” Thus, the
transcript reveals the town council denied the rezoning request
because of the minimal increase in traffic in a heavily traffic
congested area. Accordingly, the record reveals a plausible basis
for the town council's decision that had a basis in reason and bore
a substantial relation to public safety.
As stated, this Court is not free to substitute its judgment
for that of the town council. Furthermore, “the courts may not
“interfere with or control a municipality's zoning power or directzoning ordinances to be repealed, enacted, or amended.” In re
Markham, 259 N.C. 566, 570, 131 S.E.2d 329, 333 (1963).
Accordingly, the judgment below is,
Affirmed.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
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